Today we revisit the Mental Health Act 2007 (NSW) s 20 – and for earlier discussions see https://emergencylaw.wordpress.com/?s=%22mental+health+act+2007%22.
This question is timely given a recent Australasian College of Paramedicine webinar. Given I was a present at that webinar this answer will draw on material prepared for that and borrowed from others so it may wonder beyond that necessary to answer the question. The question is:
I’ve been told by several hospital staff that a person cannot be sectioned if they are in police custody and may only be assessed, transported, treated etc either under the MHA or the law. When I relay this information to police they do not agree and have tried to pressure me into sectioning people who I don’t think I can legally section. Eg a patient in police custody for breach of an AVO had a razor blade hidden in his waistband, the patient produced this and slit his wrists whilst in the cells of a police station. Patient admitted to suicidal ideation, needed stitches for their wounds and obviously a mental health assessment at hospital which they were agreeable to all forms of transport and treatment to facilitate this. The police sergeant then asks if I’m happy to section on this information, I told him I won’t. A – because he is voluntary and B – because he is in police custody he cannot be sectioned. We had a big argument and he told me in all of his experience he has never heard of this and was quite unprofessional. Anyway, could you please advise on what is right legally in this situation?
The problem I have with the question is ‘what does section mean?’ I asked and my correspondent said:
By “sectioned” I mean to place someone under section 20 or 22 of the mental health act, I suppose we just use this as slang with the police and/or hospital staff.
As I’ve said before, you cannot ‘place someone under section 20’ because that is just not what the section says. Section 20 says:
20 DETENTION ON INFORMATION OF AMBULANCE OFFICER
(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.
(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.
There is nothing in s 20 to say that it cannot be relied upon when a person is in police custody. If a person in police custody appears to an ambulance officer ‘to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then subject to the discussion below the ambulance officer ‘may take the person to a declared mental health facility’.
Therefore what a police sergeant is asking if he or she asks are you ‘happy to section on this information?’ is ‘will you take the person to a declared mental health facility?’ If you don’t think the person ‘appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then the answer would be ‘no’. If you do think the test is met, the answer would be ‘yes’ provided the patient consents – and we’re told this patient does consent (see Revisiting the role of police and paramedics when dealing with the mentally ill in NSW (September 14, 2019)).
As I’ve said before I just don’t think s 20 says what NSW Ambulance and NSW paramedics think it says. It does not say that a person who is competent but refuses treatment (which is not the case in this story) can be treated against their wishes by NSW paramedics. In support of that I note the following:
- Section 20 does not say an ambulance officer may ‘detain’ or ‘apprehend’ a person or refer to ‘involuntary admission and detention’. The heading does not say ‘detention by an ambulance officer’. It is detention by others ‘on the information of an ambulance officer’. The power to detain is given to the mental health facility (s 18(1)(b)). The ambulance officer can take them to the facility and the facility can detain them on the basis of the ambulance officer’s view and before they are assessed by a medical practitioner.
- It says ambulance officers may ‘take’ a person to a facility. I read that as giving permission to travel to a mental health facility rather than say the nearest emergency department. It allows them to bypass other facilities if the criteria are met. Compare s 20 to
- s 18 – ‘A person may be detained in a declared mental health facility…’
- s 19 – ‘A person may be taken to and detained …’ and the doctor must be satisfied that ‘that involuntary admission and detention are necessary’
- s 22 – ‘A police officer … may apprehend the person and take the person …’
- The Mental Health Act assumes that the mentally ill may and where they can, must consent to treatment. If that right – to make autonomous decisions – is to be overriding it must be clear and unambiguous. Section 20 is neither.
- Section 20 does not compel anyone else to do anything. A mental health facility may not must detain a person brought by ambulance. Even if s 20 allows paramedics to take a person against their competent refusal, they are free to leave the facility once they have arrived unless the facility elects to exercise their powers under s 18.
I know NSW Ambulance thinks consent is irrelevant (see for example Protocol A3 and Protocol MH3) but I just don’t think that is what the section says. Protocol MH3 says (emphasis in original) if ‘the PATIENT IS WILLING to be transported to hospital voluntarily there is not need to enact Section 20 …’ That confirms my correspondent’s position where the patient is ‘agreeable to all forms of transport and treatment’ but in any event, it still does not make sense. If the patient is willing to be transported to hospital voluntarily’ then s 20 says that the paramedics may take them there. Paramedics don’t have to do anything to ‘enact’ section 20. Section 20 is engaged when they select a ‘declared mental health facility’ as their destination. That decision enlivens s 18 such that the facility that receives the patient may choose to detain them based on the information provided by the ambulance officers pending examination.
As a rule of statutory interpretation every word must have meaning. Both police and ambulance officers have a power to ‘take’ a person to a mental health facility (ss 20 and 22) but only police have a power to apprehend (ss 21 and 22). If the word ‘take’ (in s 20) were sufficient to mean ‘take contrary to the patient’s refusal’ then the term ‘apprehend’ in ss 21 and 22 has no role to play. I am reassured that the use of the word ‘take’ in s 20 does not mean ‘take against the wishes of a competent person’ because of the language used in comparable legislation:
- Mental Health Act 2015 (ACT) s 80: ‘A police officer or authorised ambulance paramedic may apprehend a person …’
- Mental Health and Related Services Act 1998 (NT) s 31: ‘A paramedic may detain a person …
- Mental Health Act 2007 (NSW) s 21: ‘A police officer to whose notice …a request for assistance by an ambulance officer … is brought must, if practicable– (a) apprehend …’ and s 22: ‘A police officer … may apprehend …’
- Public Health Act 2005 (Qld) s 157B: ‘… ambulance officer or police officer may detain the person …’
- Mental Health Act 2009 (SA) s 56 ‘An authorised officer [which includes an ambulance officer] … may take the person into his or her care and control …’
- Mental Health Act 2013 (Tas) s 17: An MHO [Mental Health Officer which includes appointed ambulance officers] or police officer may take a person into protective custody …’
- Mental Health Act 2014 (Vic) s 351: A police officer, or a protective services officer on duty at a designated place, may apprehend a person …
- Mental Health Act 2014 (WA) s 156: ‘A police officer may apprehend a person if the officer reasonably suspects that the person …’
We can see what the legislation looks like if you want to deprive a person of their liberty. In NSW ss 21 and 22 do look like that; s 20 does not.
My view is that in NSW, Victoria and WA if the person does not have the capacity to consent, then a paramedic can provide treatment that is reasonably necessary and in the patient’s, best interests. And that may include sedation and transport to care- and that’s true if they’re mentally ill or have a physical injury eg a head injury. That’s the common law doctrine of necessity and often replicated in guardianship type legislation. If the patient can consent and does, then paramedics can provide appropriate care. If the patient can consent but chooses not to then their decision has to be respected even if they are mentally ill (PBU & NJE v Mental Health Tribunal [2018] VSC 564; see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).
Where a person is mentally ill and meets other criteria, they can be detained against their will by a paramedic in the ACT, the NT, Queensland, South Australia and Tasmania. In NSW, Victoria and WA the power to apprehend the person, that is a power to deprive the person of their liberty – their freedom to come or go – is a power to be exercised by police. Though police, having exercised those powers, may ask ambulance for assistance.
In NSW, the value of s 20 is that the mental health facility can say ‘the paramedics think you’re mentally ill and they’ve brought you here so on the basis of their observations and assessment, we’re going to detain you ‘on the information of the ambulance officer’. The patient may come with the ambulance officers voluntarily but can then be detained by the facility. Section 20 is a condition precedent for the health facilities decision to detain, it does not say that the paramedics can treat a competent person against their will even though NSWAS thinks it does and even if that is what the Parliament intended. If that is what they intended, they should and could have said so (as the Parliaments in other states did). In NSW they did provide for ‘apprehension’ by police, but not by ambulance officers.
Let us return then to the given scenario:
… a patient in police custody … had a razor blade hidden in his waistband, the patient produced this and slit his wrists whilst in the cells of a police station. Patient admitted to suicidal ideation, needed stitches for their wounds and obviously a mental health assessment at hospital which they were agreeable to all forms of transport and treatment to facilitate this.
An ambulance is called. The patient has physical wounds that need stitching. Section 20 says that the ambulance officers may take the patient to ‘a declared mental health facility’. Let us assume the local ED is not ‘a declared mental health facility’.
The sergeant asks ‘are you happy to section on this information?’ But the question means ‘Are you happy to transport the patient to a declared mental health facility?’ to which the answer would, presumably, be ‘no, as they need to go to ED to have their wounds attended to’. If the local ED was a ‘a declared mental health facility’ the question is irrelevant as you are going to take them there anyway.
The hidden, but wrong meaning is that if you were to elect to take them ‘under s 20’ then they are not free to leave, but that is not what s 20 says. At best it says the declared mental health facility may detain them if the circumstances of the Act are met, but presumably they would treat the person as a voluntary patient given that he is consenting to treatment. If the person is not free to leave it’s because he is in police custody for whatever offences he is alleged to have committed and remains in custody until a bail decision is made.
Conclusion
- A person who is mentally ill and consents to treatment should be not be treated as an involuntary patient by anyone – a mental health facility, a paramedic or a police officer.
- A person who appears to police to be mentally ill and who has committed a crime or attempted suicide may be apprehended by police and taken to a mental health facility.
- A person who appears to an ambulance officer to be mentally ill or mentally disordered may be taken to a mental health facility by a paramedic but may not be ‘apprehended’ or ‘detained’ by that paramedic. Those words do not appear in s 20; they do appear in ss 21 and 22. If the person has the capacity to give or refuse consent and they don’t want to come; they don’t have to. If they do not have the capacity to give or refuse consent, then treatment that is reasonably necessary and in their best interest, including transport to a declared mental health facility (s 20) and restraint or sedation may be given (Mental Health Act 2007 (NSW) s 81; In Re F [1990] 2 AC 1 and see The doctrine of necessity – Explained (January 31, 2017)). Mental illness does not however necessarily mean a person lacks capacity (PBU & NJE v Mental Health Tribunal [2018] VSC 564)),
- If an ambulance officer, relying on s 20 takes a person to a hospital or a mental health facility, that does not impose any restriction on the patient’s liberty once they get to that facility. It empowers the mental health facility to make a decision to detain the person (s 18) but does not compel them to do so.
Australian Emergency Law 
This is a response to a comment that came via email:
Further to the discussion above, I have been referred to the Minister’s second reading speech where the then Health Minister, Paul Lynch said that the Act
A second reading speech can be used to help a court interpret an ambiguous provision (Interpretation Act 1987 (NSW) s 34) but a court cannot simply rewrite an Act to make it say what the Minister said it meant. Sometimes the Minister says ‘this Act will do x’ and a court will say ‘that may be what you meant; but it’s not what you said’. And that may be because the briefing note to the Minister is wrong or it may be that the Act was amended during the parliamentary process so that the Bill the Minister introduced is not the same as the Act that was passed.
In this case the Minister referred to ‘where that officer has been authorised to make ‘detention decisions’. The definition of ‘ambulance officer’ in the Act (s 3) is ‘member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act.’ Given the terms of the protocols I infer that the secretary has authorised every ambulance officer to ‘exercise functions of an ambulance officer under this Act’ but the authority could be extended eg to non-emergency patient transport staff who are no longer part of NSW Ambulance. But that definition does not refer to ‘detention decisions’ nor does the phrase ‘detention decisions’ appear in the Act
I can see the argument that people who want to interpret s 20 to allow involuntary treatment might make.
• First s 20 is in the part of the Act dealing with Involuntary Admission and Treatment in and Outside Facilities.
• Second, paramedics have a wider scope of decision making. That is consistent with recognising that mental illness is indeed a health issue. Paramedics who fear the person will, if transported by ambulance, be a threat to themselves or others, may call police (s 20(2)) who have the power to ‘apprehend’ the person and the police must exercise that power when requested to do so by paramedics (s 21(1)). This only applies if the patient will pose a threat if transported by ambulance but they may not be a threat unless police are involved. If paramedics could not ‘gently’ detain the person they would have to call the police and that may indeed increase the risk and that would be perverse.
• To be mentally ill or mentally disordered within the meaning of the Act does require a view that the person is at risk to themselves or others (ss 14 and 15) so on any view the Act does not permit the detention of a person who is mentally ill, would benefit from treatment, is able to and does refuse consent and is not posing a risk to themselves or to others.
I can understand why NSW Ambulance and NSW Police want to interpret the Act the way they do, I just don’t think that interpretation is open on the language of the Act.
I can also bet what the response would be if this was raised with the NSW Crown Solicitor or NSW Health Legal Branch. It would be:
Is this a problem? If police and ambulance are happy to proceed on the basis that the Act does allow involuntary treatment, and if the patients aren’t complaining, why fix it? If the argument is an academic looking at the words of the text then fine, there’s an argument to say s 20 does not allow involuntary treatment and there’s an argument that says it does. Let’s wait until someone tests it and if we don’t like the court’s ruling we’ll change it then, because the court’s ruling will also depend on the facts – and a court may well find that the patient was not competent or even if the patient was pressured they, at the end of the day, consented to getting into the ambulance and the problem doesn’t arise. Leave well enough alone.
But my problem is when people ask me questions based on what I see as a flawed interpretation I cannot answer that the law allows x or that if a paramedic ‘schedules a patient under s 20 does it mean …’ because I just don’t think that’s the law.
What one needs to try and do is read s 20 (and ideally ss 18-22) without a preconceived notion of what you want the Act to say and putting aside how it is applied in practice and just ask ‘what does it say?’. The Minister talked about ambulance officers being authorised to exercise ‘detention decisions’ but that phrase does not appear. Neither ‘detain’ nor ‘apprehend’ appear in s 20 but they appear in ss 18, 21 and 22 and in the mental health legislation in every other jurisdiction.
Decisions that may limit a person’s freedom are always read down to the least restrictive meaning open on the words and that will be particularly true here where the whole emphasis of the Act is to provide mental health care in the least restrictive way possible (s 3(c), s 12). In DPP v Kaba [2014] VSC 52 at [138], Bell JA said, that interpreting a law that purports to restrict fundamental freedoms such as the right to be at liberty (and I would suggest the right to be free of involuntary treatment)
Parliaments can ‘abrogate or curtail fundamental common law rights and freedoms’ and was found to have done so in that case and that is also the basis for rejecting ‘sovereign citizen’ claims that the current response to COVID-19 is unlawful. They can do it but they have to do it clearly and unambiguously. Reading s 20 as not permitting involuntary treatment is consistent with those principles.
I simply cannot get past the fact that s 20 does not use either the term ‘detain’ or ‘apprehend’ when other sections do. The Parliament has made it clear who can detain or apprehend a mentally ill person, and it is not an ambulance officer.
Hi Michael, Thank you for your time and input on this topic. This debate is very current and widely discussed within NSWA. Another aspect of the discussion relates to drug and alcohol intoxication. Can a person be deemed mentally ill or mentally disordered if they are under the influence? Can a clinical diagnosis be made if they patient is affected by substances altering their normal/baseline/prevailing cognition? Again thank you for your time, it looks like you have had a busy weekend. Steve
That is really a clinical rather than a legal question. As someone who is not a clinician I cannot see how being intoxicated would constitute a mental illness (see s 14 and the definition of mental illness) but they could be mentally disordered (s 15) that is
“A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary–
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.”
But remember s 20 allows you to take them to a designated mental health facility. If you are not taking them for treatment by a mental health professional then s 20 is irrelevant even if, by coincidence, the local ED is a designated mental health facility.
Thanks very much for providing such a detailed explanation of what s20 really provides.
To be clear in practical terms, if a paramedic in NSW, working within the scope provided for by NSWA, is assessing and treating a patient that they believe is mentally ill or mentally disordered to the extent that they would benefit from being transported to a designated mental health facility for further assessment or treatment (as allowed for under s20), and the patient refuses consent to be transported or treated any further, what now?
If there is no immediate risk to life, then how does the doctrine of necessity apply? (I’m thinking risk to reputation and other harms that, while more nebulous, can have significant consequences for the patient).
If the doctrine of necessity does apply and the patient is refusing, is the only recourse to request police to apprehend the patient in order to facilitate transport? Is this reasonable given the principle of least restrictive means?
I appreciate that the language of s20 doesn’t allow for paramedics to involuntarily treat/transport a patient without their consent, however we’re talking about people who are, and may remain, at real risk of harm to their ongoing well being, relationships or ability to support themselves, if their mental health is left untreated.
It would seem that NSWA needs to rewrite its current MH protocols in order to take account of what s20 is actually saying, as opposed to the assumptions we’ve been working under to date.
Thanks for your time and attention to this issue.
If the patient is competent, refusing treatment and there is no immediate risk to life you can’t do anything. The definition of ‘mentally ill person’ (s 15) requires that care, treatment or control is required to protect the person or someone else from ‘serious harm’ (but what that means can of course be open to debate).
Further the doctrine of necessity only applies when it is not possible to communicate with the person, in essence if they are not competent to refuse. If they are competent and do refuse that has to be respected.
If the doctrine of necessity does not apply and the patient is refusing, then yes my reading is that you need to call the police (ss 20(2) and 21) but I acknowledge that no-one thinks that is best practice. Mixing the police and the mentally ill often does not end well. No it’s not ‘reasonable given the principle of least restrictive means’ but that does not change the wording of s 20 – but it’s an argument that the Parliament should change the wording of s 20.
Thank you for the explanation. This is clearly an important problem that requires legislative attention in order to rectify s20 so it properly reflects its intended purpose.
Hi Michael,
Thank you for your detailed response however I think you may have misinterpreted my question.
What hospital staff have conveyed is that a person may not be assessed, detained, treated, admitted etc under the mental health act at the same time as they are in police custody under the crimes act or whatever applies and that this transport, assessment, treatment etc may be performed in police custody whether the patient consents or not for necessary medical treatment which I assume should apply to both physical and mental health.
Could you please confirm if this is correct and if not then what obligations or responsibility do police have to their patients whilst in custody, if any?
The patient has admitted suicidal thoughts with a suicide attempt and needs a mental health assessment at a mental health facility. If they are being detained because they are in police custody anyway then should any part of the mental health act apply?
In your conclusion you state:
A person who is mentally ill and consents to treatment should be not be treated as an involuntary patient by anyone – a mental health facility, a paramedic or a police officer.
This is interesting as police write section 22s for patients all the time if they’ve used the words suicide or similar threats, even off third party information.
Everyday in Sydney police call us for a mental health assessment. “Patient sent text to friend saying they want to end their life”. Police find patient, admits they are feeling suicidal, police call for a mental health assessment. Ambulance come, patient feeling suicidal and at risk, requesting transport to hospital, no risk of absconding, ok let’s go. Police write a schedule 22 detaining and effectively making this patient involuntary until assessed at a mental health facility. In the city this happens probably 20 times a day.
Anyway thanks again for your time and effort,
Pat
I can see nothing in the law that would support the assertion that the Mental Health Act 2007 (NSW) does not apply if a person is in police custody. A person in police custody may be transported to a health facility but police cannot give consent or require them to undergo medical treatment. A person who is under arrest can still consent, or refuse consent to medical treatment. Providing treatment without the patient’s consent is a battery, even if police ask the paramedics or a facility to provide the treatment. (Noting that the situation may be different for prisoners under sentence see for example Crimes (Administration of Sentences) Act 1999 (NSW) s 73). It follows that, in my view, the assertion ‘that a person may not be assessed, detained, treated, admitted etc under the mental health act at the same time as they are in police custody’ is not correct.
As noted many times on this blog, and by the High Court in Stuart v Kirkland-Veenstra, suicidal ideation may be evidence of a mental illness or disorder but it is neither necessary (ie you can be mentally ill or mentally disordered without being suicidal) nor is it sufficient (the presence of suicidal ideation, without more, is not proof of mental illness or mental disorder; see https://emergencylaw.wordpress.com/2020/09/07/treatment-after-a-suicide-attempt/).
I do suggest people actually read the Mental Health Act 2007 (NSW) ss 18 through to 22 inclusive. For action under s 22 police have to believe that the person appears to be ‘mentally ill or mentally disturbed’. Mentally ill is defined in s 14. Mentally disturbed is not defined – but it must be something other than ‘mentally ill’ (s 14) or ‘mentally disordered’ (s 15). Police are not required to exercise the same clinical judgment as a doctor, or a paramedic (see State of NSW v Talovic [2014] NSWCA 333 discussed at https://emergencylaw.wordpress.com/2017/08/27/mentally-ill-mentally-disturbed-mentally-disordered-or-just-injured-and-in-need-of-medical-care-in-nsw/).
Let us assume that the criteria set out in s 22 applies. The police may apprehend the person and take them to a mental health facility. If they are already in custody, they would be under the care of the custody manager. The custody manager must arrange for medical care if ‘it appears to the custody manager that the person requires medical attention, or the person requests it on grounds that appear reasonable to the custody manager’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 129). If the patient wants to go with a mental health facility the police could take them or could ask the ambulance service to do so. If the person doesn’t want to go the only justification would be action under s 22 or by getting a doctor to examine the person and the doctor may act under s 19.
Assuming the police want to act under s 22 they could ask ambulance to assist (s 81). In my view if paramedics don’t think the person meets the criteria set out in s 20 they should refuse to take the person (https://emergencylaw.wordpress.com/2019/09/14/revisiting-the-role-of-police-and-paramedics-when-dealing-with-the-mentally-ill-in-nsw/). You say ‘I don’t think this person appears to be mentally ill or mentally disturbed, if you do, you take them’.
Talk of ‘completing a s 22’ (or s 20) is meaningless. A police officer acts under s 22 when he or she ‘apprehends and takes’ a person. A paramedic acts under s 20 when he or she ‘takes’ the person to a mental health facility. The forms that have been created to record the observations and to communicate to the health facility why the patient has been delivered there are not prescribed by law (compare the document completed by a doctor under s 19). It is the action of ‘taking’ the person, not the form that is important.
Police writing ‘a schedule 22’ does not effectively make ‘this patient involuntary until assessed at a mental health facility’. It communicates to the health facility the officer’s observations. Police can apprehend a person and take them to a mental health facility. Whilst they are in the custody of police they are not free to go (that’s what apprehend means) but they are not required to accept treatment and the mental health facility is not required to detain them. The delivery of the person to a mental health facility by police or paramedics gives the health facility the power to detain the person. A form that someone has designed for the purposes of ss 20 or 22 does not compel the facility to detain the person nor does the fact that they have been delivered there by police or ambulance (see s 18). Once they have been delivered to the mental health facility they are free to go unless the staff of the facility elect to detain them under s 18.
Michael,
I note your very thorough analysis of this question; of relevance to the interaction of Police and paramedics with the mentally ill, the intention and operation of S20 and S22 are somewhat different, however ultimately give authority to take a person to hospital for a mental health assessment.
The ongoing question between paramedics and police involving the use of the MHA provisions comes about for two primary reasons;
Firstly S20 is far broader in it’s interpretation and application when dealing with the patient than S22. It is far broader in its application when discussing whether a person has exhibited signs or behaviours that a paramedic considers justification to take that person for assessment.
S22 is far more restrictive upon Police officers when interpreting the section and requires a threat to themselves and/ or others, and also if a minor crime was involved and the police suspect a person to be mentally ill, that the person is also best dealt with under the Mental Health Act.
If in the eyes of the attending police officers, the threshold is not met under S22 to detain the person, but they still have genuine concerns for the person, S20 is a way to ensue that the patient has access to assessment and treatment at an approved mental health facility.
Secondly, and on an operational level, if a police officer decides to detain a patient under S22 of the MHA, regardless of if they are transported in an Ambulance or otherwise, Police are often required to remain with that patient at hospital until seen by a mental heath practitioner. The effective outcome of S22 is that once that that power is exercised by Police, (who have formed the view that person is mentally ill and a danger to themselves or others) they assume a very significant duty of care to ensure that person cannot leave the hospital before being assessed. I have first hand involvement in a coronial hearing involving this very point. Other than several very specialised centres in metropolitan areas, the overwhelming majority of patients delivered under S20 or S22 pass through the ED first.
Hospital security officers will often declare they have no power to hold a patient prior to assessment (Which is completely untrue under the MHA). If there is any risk of leaving prior to assessment or admission, Police will remain. As such, in the absence of a criminal component to the original interaction with Police, convincing your friendly Paramedic to take the patient under S20 can free up a significant amount of Police waiting time at the hospital for what is essentially a medical issue. The MoU between NSW Health and NSW Police states a target waiting time of less than one hour, but the reality is in overworked ED’s, triage and clinical emergencies inevitably take priority over a patient who is safe in the company of Police.
In respect to the original poster’s question, I think it is important not to confuse the issue around persons in police custody with the operation of S20 and S22. A person who is in police custody is subject to the operation of the Law Enforcement (Police Powers and Responsibilities) Act (LEPRA) and also the Bail Act.
The point of the process at which it becomes necessary to summon ASNSW assistance for a person in custody will determine whether the person can be conveyed under S20 or not. Having said that, I would submit that if a person is in custody, the police request for ASNSW to exercise S20 is entirely inappropriate, if not improper. If the person has already been bail refused, or is in custody for an offence where bail refusal or stringent bail conditions would be likely, then that person should be conveyed under Police guard to a hospital and remain under guard until either medically discharged back to Police custody. Alternatively a bedside court could be held and the person is either transferred into the custody of Corrective Services, admitted as a involuntary patient or given bail. In the case of the OP’s question, that request from the custody Manager (or Bail Sgt if you wish…) would be highly inappropriate in the circumstances of self harm in custody.
Notwithstanding the self harm in custody, that person remains under arrest and in custody until a bail determination is made or the arrest is discontinued.
Conversely, if the person was arrested for a minor offence in which bail could be dispensed with, the use of S20 could be considered appropriate.
Thanks Mick, can you give a reference to the ‘coronial hearing involving this very point’ that you were involved in (e.g. name of deceased, date of hearing, name of coroner?) It would be helpful to read any determination (if there was one).
https://www.google.com/amp/s/amp.smh.com.au/national/nsw/is-he-breathing-inquest-told-man-became-unresponsive-after-being-tasered-and-held-face-down-20190918-p52skd.html
Good evening Michael,
The above is a link to the SMH article which details the death of Jack Kokaua on 18/2/18 at Camperdown. The matter is still part heard before the Coroner’s Court with findings due shortly.